Tuesday, January 12, 2016

Natural Born

A constitutional law
professor at Fordham University says U.S. Sen. Ted Cruz’s “natural-born
citizen” claim only works if he ironically adopts a wishy washy interpretation
of the U.S. Constitution favored by liberal progressives.

Thomas Lee of Fordham Law School wrote an op-ed for theLos Angeles
Timeson Sunday saying the Texas Republican must use a
progressive “living fluid Constitutional” theory to convince voters he is legally
eligible to be commander in chief.

But… Cruz considers himself to be…well…a constitutional
originalist.

Lee said there are two
fundamental principles an originalist must use to determine whether or not a
person is a natural-born citizen:

U.S. Jus soli, - the
law of soil: A child was a citizen of the sovereign who ruled the land where he
or she was born.

Or…

Jus sanguinis, - the
law of blood: A child’s citizenship was determined by the parents’ allegiance,
regardless of place of birth. The law of
blood would have applied only to the father’s place of birth in a 1788 interpretation.

Is Ted Cruz a 'natural born Citizen'? Not if you're a
constitutional originalist.

Article II of the Constitution
states: “No Person except a natural born Citizen . . . shall be eligible to the
Office of President.” Donald Trump thinks Sen. Ted Cruz is not a natural
born Citizen and that he is therefore constitutionally ineligible to be
president. Is Trump right? Cruz was born in 1970 in Calgary, Canada, to a U.S.
citizen mother and a Cuban citizen father. As to his Article II status, it's
all in how you read the Constitution.

There are three leading theories of how to interpret the Constitution today.
One is textualism: the Constitution
means what its words say. The historical context of the words is important when
a modern plain meaning is not self-evident. A second theory, adopted by many
liberals, relies on a “living
Constitution”: the Constitution means what is most consistent with
fundamental constitutional values as applied to present circumstances, in other
words, whatever one wants it to mean. The third theory, championed by many
leading conservatives, is originalism:
The Constitution means what ordinary people would have understood it to mean at
the time it was ratified, which is in 1788.

To an originalist, a “natural born Citizen” is a person who is a citizen of the
United States under “natural” principles of law in 1788. Two such principles
were then in play in the U.S. Jus soli — the law of soil — was the principle
that a child was subject or citizen of the sovereign who ruled the land or seas
on which the child was born. Jus soli was viewed as a part of the common law of
England, which was adopted by the American states. Jus sanguinis — the law of
blood — held that a child's citizenship flowed from the parents' allegiance,
regardless of place of birth. This principle was prevalent in continental
Europe, and in England it was the basis for an exception to jus soli for
children born there to foreign ambassadors.

The principle of jus sanguinis in 1788 applied to patrilineal descent only: A
person born in a foreign country was viewed as a “natural born Citizen” of his or her father's country. However
odious it seems today, a child born of a woman whose citizenship was different
from her husband's — much rarer then than today — could not be a “natural born
Citizen” of the mother's country. That idea wasn't even considered until 1844
in Victorian England.

The upshot is that to an originalist, someone like Cruz — born in a foreign
country (and therefore not a natural born citizen of the United States by jus
soli) and to a Cuban citizen father (and therefore not a natural born citizen
of the United States by jus sanguinis ) — is not eligible to be president.

The professor said that only by allowing modern cultural
norms to influence his reading of the Constitution, as a so-called “living
constitutionalist” would do, can Cruz deflect“birther”-type
attackson his presidential
eligibility.

Cruz’s mother,
Eleanor Darragh, wasbornin
the state of Delaware on Nov. 23, 1934. His father, Rafael, was born in Cuba.
Cruz himself was born in Calgary, Canada, on Dec. 22, 1970, but renounced his
dual citizenship with Canada in 2014.

THE BOTTOM
LINE: If Ted Cruz is eligible to be president, then Obama if he was
really born in Kenya rather that Hawaii would be also eligible. Obamas Mother was American born. But if Obama was born in Kenya he would not be
eligible because his Father was Kenyan, at that time a British subject. This is
what all the birther controversy was about. Now Cruz finds himself in the same
messy quagmire.

You know
what they say? What is good for the goose is good for the gander.

This is one
time I think the Supreme Court should make an opinion and clear this up once
and for all…

Thanks for
listening - de Andréa

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